Source: Indian Express

Introduction

Recently, Justice Sanjay Kishan Kaul of the Supreme Court in his retirement speech spoke about different subjects including privacy, same-sex marriage, rafale deal case, Article 370, etc. He also added that the “Court cannot be the Opposition”. He highlighted that important distinctions are getting blurred in a system where the balance of power is being reset by a strong and assertive political executive.

He also rightly notes the decreasing opportunities for dialogue in a society that is increasingly divided, making it challenging to find a middle ground. Justice Sanjay Kishan Kaul emphasized upon independence of the judiciary.

What are the Recent Judgments when Supreme Court Upheld the Decision of Government of India?

• Justice K. S. Puttaswamy v. Union of India (2017):
  • A nine-judge bench of the SC upheld the Aadhar Act and said that Right to Privacy is inherent under Article 21 of Constitution of India, 1950.
• Manohar Lal v. Narendra Damodar Das Modi (2019):
  • In December 2018, the SC dismissed a set of petitions seeking a court-monitored investigation into the Rafale deal.
  • The court stated that there was no evidence of wrongdoing in the procurement process.
  • In 2019, SC denied reviewing its judgment.
• In Re: Article 370 of the Constitution (2023):
  • SC unanimously upheld the abrogation of Article 370 of the Constitution of India, 1950 which granted special status to Jammu & Kashmir.

What are the Recent Judgments when Supreme Court Questioned the Decision of Government of India?

• Supreme Court Advocates-on-Record Association v. Union of India (2015):
  • The "Fourth Judges Case" was a landmark judgment by the SC in 2015.
  • In this case, the court struck down the National Judicial Appointments Commission (NJAC) which sought to replace the collegium system for appointing judges with a commission comprising both judicial and non-judicial members.
  • The SC, in its judgment, reaffirmed the primacy of the judiciary in the appointment and transfer of judges and emphasized the need for maintaining the independence of the judiciary from the executive.
• Government of NCT of Delhi (GNCTD) v. Union of India (2023):
  • The matter begun when the Ministry of Home Affairs released a notification on 21^st May 2015, declaring that Lieutenant Governor of Delhi would possess authority concerning “services” under Schedule VII, List II, and Entry 41 of the Constitution of India, 1950.
  • SC held in the favor of Delhi Government stating that the ideal conclusion would be that GNCTD ought to have control over services, subject to exclusion of subjects which are out of its legislative domain.
    • The legislative and executive power of NCTD over entry 41 shall not extend over to services related to public order, police and land.
    • However, legislative and executive power over services such as Indian Administrative Services or Joint Cadre Services which are relevant for the implementation of policies and the vision of NCTD in terms of day-to-day administration of the region, shall lie with the NCTD.
  • Government of India has sought review against this judgment.

Conclusion

Justice Sanjay Kishan Kaul's retirement speech sheds light on the challenges faced by the judiciary in navigating a complex political landscape. These cases collectively emphasize the judiciary's role as a crucial check and balance in a democratic society, which is the need of the hour.